Mitch McConnell, Judicial Activist

The Senate minority leader seeks majority opinions.

Terry Eastland

April 28, 2014, Vol. 19, No. 31

"This is the best Supreme Court, if you’re interested in a free society and in the ability of Americans to participate in the political process with a minimum amount of government restrictions. In fact, this is a great Supreme Court.”

Of course, President Obama, this great Supreme Court’s greatest scold, didn’t say that. Senate minority leader Mitch McConnell did, in an interview last week in the wake of the Court’s decision in McCutcheon v. Federal Election Commission (FEC).

In McCutcheon, the Court, vindicating the First Amendment’s guarantee against laws abridging “the freedom of speech,” struck down so-called aggregate limits on how much an individual may contribute to candidates for federal office, political parties, and political action committees (PACs). While donors are already subject to limits on how much they can give to any single candidate, party, or PAC, aggregate limits cap the amount that they can contribute altogether, in any two-year election cycle.

First elected to the Senate from Kentucky in 1984 and its minority leader since 2007, McConnell filed in the case an amicus curiae (“friend of the court”) brief supporting Sean McCutcheon, an Alabama businessman. It is the eleventh case involving elections and the First Amendment in which McConnell has been involved—in all but one as a friend of the court. In each of the last six of those cases the Court has decided, McConnell has been on the winning side.

In Randall v. Sorrell (2006), the Court struck down limits Vermont law imposed on campaign contributions and campaign spending. A year later, in Wisconsin Right to Life v. FEC, the Court voided restrictions on “issue ads” mentioning a candidate for office within 30 days of a primary or 60 days of a general election.

In Citizens United v. FEC (2010)—the decision that President Obama used in his 2010 State of the Union speech to excoriate the justices, with some sitting in the audience—the Court ruled that the government may not limit the political speech of corporations, associations, and trade unions in the runup to a primary or a general election. In McComish v. Bennett (2011), the Court rejected Arizona’s system of providing additional funding to publicly funded candidates when they face big-spending opponents or opposition groups. And in American Tradition Partnership, Inc. v. Bullock (2012), the Court, invoking Citizens United, struck down a Montana law banning all corporate spending in state elections.

In these cases, McConnell challenged what he calls “the government impulse to control the speech of American citizens and how they run for office.” It is an impulse found in the elective branches of the federal government, and thus his own chamber, the Senate, as well as in the states, as the cases involving Vermont and Montana demonstrate. McConnell is pleased with the First Amendment “corrections” to this impulse the Court has made, calling them “outstanding decisions that move us in the right direction.”

Of course, for McConnell, things were not always moving in the right direction with respect to “political speech,” as it is often called. Indeed, in 2003 the Court reviewed the new measure known as McCain-Feingold (after its chief sponsors John McCain and Russell Feingold) and signed into law by President George W. Bush; key provisions imposed substantial limits on campaign contributions and spending. The Court sustained most of the law in McConnell v. FEC, the McConnell who brought the challenge being, of course, Mitch McConnell—he was the lead plaintiff in the only case in which he has been a party.

McConnell says that the case that bears his name was “the low point for me on this issue,” but soon enough things turned, with the Court coming around to a “view of the First Amendment and political speech similar to my own.” Why? In large part, he says, because, in 2006, Justice Sandra Day O’Connor retired and Justice Samuel Alito took her place.

McConnell’s interest in the First Amendment and how it applies to political speech dates to the 1970s, when, just a few years out of law school, he taught a class on political parties and elections in Louisville. “I developed an academic interest and then later, when I became a politician myself, I had a practical interest in it—and a growing belief that this is a matter on which [government] ought to minimally intrude rather than micromanage everything.” McConnell’s litigating strategy (to call it that) is this: “when [I] see a case where . . . there’s an opportunity to push back against overreaching government efforts to micromanage political speech, I look for a way to get involved.”

Right now there is no such case on the horizon, perhaps because the law has been corrected reasonably well in the recent cases. But that doesn’t mean McConnell is no longer litigating the public interest. In recent years, in fact, he’s been an amicus in cases on other issues. But where in the campaign finance cases McConnell usually has filed by himself, in these other cases McConnell has been one in a group of amici including senators but sometimes members of the House as well, all the officeholders on these briefs being Republicans. The cases tend to be well known: Some have resulted in landmark decisions; some, now before the Court, may achieve that status.

In 2012 McConnell joined 35 senators on an amicus brief in NFIB v. Sebelius. The brief addressed whether the entire Affordable Care Act should be struck down if the individual mandate were found unconstitutional, and it answered that question in the affirmative, reasoning that the mandate was at the heart of the law, and the law could not achieve its purposes without the provision. The brief assumed the unconstitutionality of the mandate, those on the brief being of the view (a McConnell aide told me) that the mandate exceeded the authority of Congress under the commerce clause. As it happened, a five-justice majority agreed the mandate did violate the commerce clause, but a different majority sustained the mandate as an exercise of the tax power, rendering “severability” a nonissue.

In 2012, McConnell joined nine of his Republican colleagues on an amicus brief initiated by Senator Orrin Hatch in U.S. v. Windsor; at issue was the Defense of Marriage Act. The Obama administration had refused, on very weak grounds, to defend the law in court. The 10 Republican senators entered the case hoping to help vindicate DOMA’s constitutionality, notwithstanding an executive branch derelict in its duties and determined to see the law struck down—as, in the event, it was.

In 2013, McConnell joined Rand Paul, the junior senator from Kentucky, and six House Republicans in an amicus brief in Utility Air Regulatory Group v. EPA. At issue is whether agency regulations limiting certain air pollutants are unconstitutional—which the eight officeholders say they are, contending that the EPA “has usurped Congress’s exclusive authority [to legislate] by improperly exercising legislative power and unilaterally amending a statute.”

Utility Air will be decided before the term ends in June, as will the three other cases in which McConnell has filed amicus briefs: Town of Greece v. Galloway, with 32 senators; Sebelius v. Hobby Lobby, with 15 senators and House members; and NLRB v. Noel Canning, with 44 senators—all Republicans, meaning that every Republican senator joined the brief.

In Galloway, the constitutionality of legislative prayer is the issue, and the amicus brief supports the prayers from Greece, N.Y., contested in the case, citing the Senate’s interest in protecting its own chaplaincy, now more than 200 years old. In Hobby Lobby, the “contraceptive mandate” in Health and Human Services regulations pursuant to the Affordable Care Act is being challenged on religious liberty grounds, with the amicus brief taking the side of religious liberty. And in Noel Canning, the issue is who gets to decide if the Senate is in recess for purposes of the president’s ability to make a recess appointment under the Constitution’s recess appointment clause—the Senate or the president? The Senate, say McConnell and company.

Is it unusual for a senator to file as an amicus in a Supreme Court case? I put the question to McConnell, who didn’t know but was interested in the answer. Don Ritchie, the Senate historian, said that modern senators do file amicus briefs and even occasionally will bring a case (if standing is available), as McConnell did against the FEC. And, Ritchie confirmed, senators get into the cases they do thinking they should use whatever lawful instruments are available in trying to achieve their strategic goals, especially in a capital where advances are often made very slowly.

Members of both parties have taken the amicus route—Democratic senator Sheldon Whitehouse, for example, joined John McCain in an amicus filing (at odds with McConnell’s position) in American Tradition Partnership. Still, Democratic members of Congress are not as active in filing amicus briefs as Republican members are, perhaps because Republicans see more opportunities to advance their legal views in the cases the Court accepts— views on the structural Constitution and on the First Amendment and the liberties they were written to protect. Certainly McConnell, who now has participated in at least 20 cases during his last 20 years in the Senate, making him probably the Senate’s most frequent filer of amicus briefs, has an eye out for the strategic case.

As for whether the justices read the members’ amicus briefs, McConnell has wondered about that himself, and has heard conflicting answers. But he is encouraged that the justices have given his lawyer argument time in Citizens United, McCutcheon, and Noel Canning, an indication, he says, that they’re paying attention.

McConnell is looking forward to the balance of the term, and would delight in a victory in each of the four cases he and his colleagues have entered, but especially in Noel Canning, the recess appointment clause case. As he explains, “It would be a pretty big brushback pitch against a president who has rather expansive views of what he can do across the board.”